The opinion of the court was delivered by: CORCORAN
This cause is before the Court on cross motions for summary judgment.
Sears, Roebuck and Co. (hereinafter Sears) is a "charging party" before the National Labor Relations Board, (Board Case No. 19-CB-1673), and seeks access, pursuant to the Freedom of Information Act (hereinafter the Act), 5 U.S.C. § 552, to certain documents issued by the Office of the General Counsel of the Board, commonly referred to as Advice and Appeals memoranda, and certain other materials incorporated by reference therein.
The Act grants this Court jurisdiction "to enjoin the defendants from withholding agency records" prospectively in addition to " ordering the production of any Agency records improperly withheld" from a complainant. 5 U.S.C. § 552(a)(3).
The controversy giving birth to this action
arose between the plaintiff and the Retail Clerk's International Union (hereinafter "Union") in April, 1971. The plaintiff charged the Union with violating Section 8(b)(3) of the National Labor Relations Act (hereinafter N.L.R.A.). As required by N.L.R.A. plaintiff Sears filed its charge with the Regional Director of the Nineteenth Region of the National Labor Relations Board in Butte, Montana, (hereinafter, Regional Director). The objective of the plaintiff in bringing its charge to the Regional Director was to obtain the issuance of the complaint against the Union.
Under the provisions of the N.L.R.A. the final authority to issue such a complaint is vested in the office of the Board's General Counsel 29 U.S.C. § 153(d).
The General Counsel has in turn delegated the initial power to determine whether a complaint should be issued to the Regional Directors. National Labor Relations Board, Organization and Functions, Section 203.1, 32 F.R. 9588. Board Statements of Procedure, Sec. 101.4, 29 C.F.R. Sec. 101.4.
To promote uniformity in the administration of the Act, the General Counsel required that Regional Directors when faced with requests that raise "novel" problems, submit a description of the request to the General Counsel's Office in Washington for "Advice" as to disposition. Statements of Procedure, Sec. 101.8. The ostensible purpose behind this procedure is to insure that new questions arising in the field of labor relations be handled in substantially the same manner in all parts of the country. In this way Advice memoranda are issued in all the novel and significant cases brought by charging parties. After extensive centralized consideration the Advice branch of the Office of the General Counsel issues these memoranda containing its final conclusions to the regional directors, who regularly implement these memoranda by issuing or refusing to issue complaints as "advised" by the Advice Branch.
Defendants claim that these memoranda include a diversity of information including settlement suggestions. However, careful examination of the procedure reveals that the net effect of an Advice memorandum is to truncate the delegated authority of a Regional Director to the point where his issuance of a complaint or refusal to do so is merely a ministerial function. Far from being recommendations, although ancillary recommendations may be contained therein, Advice memoranda are instructions mandatory in substance if not in form. As such, they constitute "instructions to staff that affect a member of the public." 5 U.S.C. § 552(a)(2)(C).
Thereafter the General Counsel either sustains the refusal to proceed or orders the Regional Director to issue the complaint. Additionally the Office of Appeals prepares a second memorandum -- the "agenda minute" -- which provides an analysis of the decision and which is sent to the Regional Director. It is access to this second group of appeals memoranda that plaintiff seeks.
Letters containing only the result, though not necessarily the underlying rationale, were sent to the parties previously in this action. During the pendency of this action a new policy has been instituted by the General Counsel whereby a portion of the information found previously only in the agenda minutes is included in these letters.
The Action of the General Counsel's office on appeals of the refusal of Regional Directors to issue complaints, whether made pursuant to "advice" from the Counsel office or otherwise is clearly final. This is not a preliminary view or a record of advocacy and debate, it is a final determination of the General Counsel's staff of the disposition of a charge. It is not an expression of a point of view, it is the disposition of a charge. As such the Appeals memorandum lies outside the Act's § (b)(5) exemption. Congress intended by that exemption only to promote the "free flow of information" Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336, 1341 (1969), and did not "design it to facilitate the easy exchange of substantive declarations of policy. Indeed, if it were, the exemption would have clearly engulfed the rule." Sterling Drug, Inc. v. F.T.C., 146 U.S. App. D.C. 237, 450 F.2d 698, 713 (D.C. Cir. 1971) Bazelon J. dissenting in part. See also, Davis, "The Information Act: A Preliminary Analysis," 34 Chicago Law Rev. 761. Since the memoranda lie outside the exemption, they must be disclosed. Tennessean Newspapers, Inc. v. F.H.A., 464 F.2d 657 (6th Cir., 1972); Getman v. NLRB, 146 U.S. App. D.C. 209, 450 F.2d 670, 672 (D.C. Cir. 1971).
It follows, further, that documents incorporated by reference in Advice and Appeals memoranda, even though possibly qualified for a Sec. (b) exemption taken separately, must also be disclosed, since they have lost their exempt status by incorporation. American Mail ...